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Patna High Court

Priyanka @ Priyanka YadavversusOm Prakash Yadav

Decided
Disposal
DISMISSED

Holding

The appeal is dismissed; the appellant must seek relief by filing an application under Order 9 Rule 13 CPC and Section 5 of the Limitation Act.

Summary

The appellant, Priyanka Yadav, appealed an ex‑parte divorce decree granted to her husband under Section 19(1) of the Family Courts Act, alleging that the suit notice was sent to a wrong address and she was never served. The trial court had struck off the appellant’s defence for non‑compliance with an order to deposit a demand draft of Rs.2,65,000, which was later produced by the respondent’s counsel. The High Court recalled the strike‑off order after receipt of the demand draft but held that the appeal could not directly set aside the ex‑parte decree. It directed the appellant to file an application under Order 9 Rule 13 of the CPC and Section 5 of the Limitation Act within three weeks to challenge the service of summons. The court noted that if the limitation application is allowed, the trial court may examine the service issue and pass appropriate relief. Ultimately, the appeal was dismissed as it lacked merit.

Issues considered

  • Whether the ex‑parte divorce decree can be set aside on the ground of improper service of summons.
  • Whether the appellate court can entertain the challenge to the decree or must the matter be pursued under Order 9 Rule 13 CPC.
  • Whether the limitation period under Section 5 of the Limitation Act bars the appellant’s challenge.

Legislation cited

Subjects

  • ex parte decree
  • service of summons
  • divorce
  • Hindu Marriage Act
  • Family Courts Act
  • Limitation Act
  • Order 9 Rule 13 CPC
  • appeal

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                                   Miscellaneous Appeal No.431 of 2021
                  ======================================================
                  Priyanka @ Priyanka Yadav, Wife of Om Prakash Yadav, Daughter of Sri
                  Niwash Singh Yadav @ Sri Nivas, Village- Saryankota, P.S.- Narhi, Distt-
                  Baliya, UP.

                                                                         ... ... Appellant/s
                                                        Versus
                  Om Prakash Yadav, Son of Mahendra Yadav Resident of Village- Garubandh,
                  P.O.- Basantpur, P.S.- Itarhi, Distt- Buxar.

                                                            ... ... Respondent/s
                  ======================================================
                  Appearance :
                  For the Appellant/s    :     Mr. Dharmesh Kumar Shrivastava, Advocate
                  For the Respondent/s   :     Mr. Amit Kumar Pandey, Advocate
                                               Mr. Krishna Kant Pandey, Advocate
                  ======================================================
                  CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
                          and
                          HONOURABLE MR. JUSTICE RANA VIKRAM SINGH
                                        ORAL ORDER

                  (Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)

24   23-06-2026                 1. This is an appeal under Section 19 (1) of the Family

                    Courts Act, 1984 challenging an Ex parte judgment and decree

                    passed in favour of the plaintiff/respondent against the

                    defendant/appellant.

                                2. At the outset, we like to record that by virtue of an

                    order dated 2nd April, 2026, we passed an order striking off the

                    defence of the respondent for his non-compliance of Court’s

                    order. It is necessary to mention that the respondent was

                    directed by an order dated 15.01.2026 and also by a subsequent

                    order to deposit a Demand Draft of Rs. 2,65,000/- in the name

                    of the wife.
Patna High Court MA No.431 of 2021(24) dt.23-06-2026
                                            2/4




                       3. Mr. Amit Kumar Pandey, learned Advocate appears

          on behalf of the respondent along with a demand draft of Rs.

          2,65,000/- in the name of his wife.

                       4. The learned Advocate for the appellant submits that

          he accepts the demand draft No. 670789                     on behalf of the

          appellant-wife and the same shall be paid to the wife in due

          course.

                       5. In view of such payment of demand draft, we recall

          the order of striking off defence of the respondent in the instant

          appeal.

                       6. It is submitted              by learned Advocate for the

          appellant that the marriage was solemnized with the respondent

          on 31.05.2017, subsequently she returned to her parents’ home

          (Maayke) on 30.07.2017. The husband filed a suit for divorce

          which was registered as Divorce Case No. 272 of 2018 on

          26.10.2018 on the ground of cruelty as envisaged in Section 13

          (1) (a) of the Hindu Marriage Act.

                       7.    It   is    contended         by   the    appellant   that

          plaintiff/respondent sent the notice of the suit to a wrong

          address and showing wrong service of notice, he managed to get

          the decree of divorce against his wife ex parte. The appellant

          did not get any opportunity to contest the case in the Trial Court.
Patna High Court MA No.431 of 2021(24) dt.23-06-2026
                                            3/4




                       8. It is needless to say that an ex-parte order may be

          set aside against the defendant, if the defendant is able to show

          that summon was not duly served or that he was prevented by

          any sufficient cause from appearing where the suit was called

          for hearing. In the instant appeal the only substantial ground is

          that the summon was not served upon the appellant.

                       9. Considering such aspect of the matter, we are of the

          view that the Court of appeal is not within its scope to consider

          as to whether summon was procured and used fraudulently to

          get the ex-party decree of divorce by the husband. This is well

          within the domain of Order 9 Rule 13 of the CPC. Therefore,

          the instant appeal is disposed off directing and given liberty to

          the appellant to file an application under Order 9 Rule 13 of the

          CPC within three weeks from the date of this order along with

          an application under Section 5 of the Limitation Act and if such

          application is filed, the learned Trial Court is at liberty to

          dispose off the application under Section 5 of the Limitation Act

          liberally however, without Sued over any observation passed by

          this Court in the judgment.

                       10. If the application under Section 5 of the

          Limitation Act is allowed, the learned Trial Judge shall examine

          as to whether notice of the suit was properly served upon the
              Patna High Court MA No.431 of 2021(24) dt.23-06-2026
                                                          4/4




                        defendant/respondent/appellant of the instant appeal or not and

                        to pass appropriate order in accordance with law.

                                     11. As we did not find merit in the instant appeal, with

                        the following observations, the appeal is dismissed.



                                                 (Bibek Chaudhuri, J)


                                                (Rana Vikram Singh, J)
Saurabh.kr/
Prakash-

U


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